BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

  Complaint No.104 of 2022

      Date of Instt. 29.03.2022

      Date of Decision: 05.12.2022

Mr. Mandeep Chauhan, Age:36 years, Occupation: Business, Having address as:- Office No.3, City Square Mall, Near Champion Gym, Jalandhar City, Punjab.

..........Complainant

Versus

Uber9 Business Process Services Private Limited F-97, Newry Shreya Apartments Anna Nagar East, Chennai-600102, Tamil Nadu, India CIN: U74900TN2014PTC098414

Also at:

Vakil Search Prince Info Park, A-5^th Floor, Ambattur Industrial Estate, Ambattur, Chennai-600 058

….….. Opposite Party

          Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. Harshwardhan Joshi, Adv. Counsel for Complainant.

OP exparte.

Order

Dr. Harveen Bhardwaj (President)

1.                This complaint has been filed by the complainant, wherein alleged that the complainant is an eminent, very renowned Astrologer and famous and Numerology expert, providing services related to Astrology and Numerology in India, U.S.A. Canada, Australia, and in many other countries. Complainant has no other earning source apart from this brand name and being an Astrologer, he is earning livelihood from this business. The OP is a leading company providing services related to Company Formation, Trademarks Registration, Trademark related services in the name and style of 'Vakil Search’. The complainant wanted to apply for the Trademarks registration for his various brand names and for that he had searched online for the said services and found that the OP provides the said services under the name and style of ‘Vakil Search’ and thus after contacting the OP, complainant have received an email from the OP on 26^th Day of March 2021 and all further communications were made between both the parties vide reference number Re: [#1739392] Need Help with: Trademark Registration. After contacting the OP, complainant on 26th March 2021 had discussed regarding the number of Trademarks he wished to apply for registration and he received an email from the Opposite party and then he was asked by the Opposite Party through the questionnaire to submit the required information for the trademarks to be applied as he was assured regarding the registration to be done based upon that. Complainant was given a quotation regarding the registration of 4 Trademarks and the total cost is of Rs.25,080/- and the complainant had paid the professional fee of Rs.7080/- on 29.03.2021 and the official fee of Rs.18,000/- on 20.04.2021. In addition to the professional fees, OP has charged an extra Rs.2 per application and then has charged GST on the total amount of professional fees. And that the opposite party has totally misguided the complainant in the entire registration process as stated further. It is the complaint of the Complainant that the Logos to be applied for the Trademark were to be applied as a Color Logo as the Color combinations in the Logo are of utmost importance in applying a Trademark and to claim an exclusivity on the rights of the Trademark, a mark must be considered to be read as a whole. Therefore, it was an unfair trade practice by the OP that despite of sending the Color Logo and knowingly the OP has applied for Black and White Logo without any consent of the Complaint which has not only caused loss of money but have caused loss of time and energy behind the creation of the intellectual property. Hence, this act of the Opposite Party has made entire applications of the Complainant baseless and of no use to claim any exclusivity on it as the same were wrongly filed. Furthermore, complainant had discussed at length regarding the process of Trademark registration with the Opposite party and the complainant was learnt from the experts of the Opposite party that, “..... in a process of the Trademark registration, prior user i.e. priority in use of a particular mark with respect to any goods or services have a significant importance in Trademark Registration”  and after the talks were concluded, OP had sent questionnaire for the further process of registration of a trademark and it is the contention of the complainant that in column No.14 of the Questionnaire stating the User Date of the Brand/Mark: it was specifically mentioned in the bracket as and replying to that said column the complainant has clearly mentioned as Two Years. And moreover, under the column 12 of the said questionnaire it was asked regarding the Trade description of Goods/Services whereas complainant has mentioned to it as:-Astrology, Numerology, Vastu Consultation & Teachings Gemstones also, but the Trademark applications were simply applied for Leal services; security services for the physical protection of tangible property and individuals which were illustrated in vague. Although Trademark Numerology Expert as depicted in the above table was filed in the name if Any Bhutani Chauhan, the payments were made from the account of Complainant Mr. Mandeep Chauhan. And after filing of the Trademark applications , complainant was intimated after few months that their Trade Mark vide TM Application number 4952349 has been objected and after checking of the status of the examination report issued dated 20/5/2021 by the Trademarks registry, Complainant was extremely helpless and shocked & surprised that the cited mark was applied by one Mr. Mittan Kumar Gupta vide TM Application number 4582289 under class 45 for Astrology consultation, Astrology consultancy, Astrology online consultancy services having applied the said Trademark on 27th July 2020 under proposed to be used category and whereas the complainant had applied on 21 April 2021 under the proposed to be used category which was falsely applied as the Complainant was using the Trademark much prior to Mittan Kumar Gupta because complainant was using Trademark ASTROWALA since December 2019 and logo of Astrowala.com was being used since March 3^rd 2020. And lastly, the Trademark was applied for ASTROWALA and the Logo was submitted for Astrowala.com, which was not proper and hence it is an unfair trade practice and deficiency of service. This act of the Opposite Party was deficiency in service as the complainant was taken in full confidence regarding the marks to be applied as per the attached mail where the OP had seek the confirmation to proceed ahead and whereas the complainant believing the information provided by the OP as true had suggested to go ahead but the marks which were applied were completely different than the given information by the complainant and later on after the examination report, the complainant had to withdraw those marks applied by the OP and filed fresh one as the field marks were of no importance. Thereafter, on 12th Day of June 2021, Complainant sent notice, Regarding Unfair Trade Practice and mis-guiding to the OP through his email and on 15^th June 2021 complainant received reply to their email. And thus, complainant replied to their above mentioned reply on 16^th June 2021, but the OP was being rude on their phone calls and provided no help to the Complainant. Thereafter, complainant had to apply for all the Trademarks newly with amendments as the basic feature of the Trademark Applications applied earlier were improper and were of no use to the complainant. Trademark Registration process is a lengthy process and it requires a lot of Time, Energy and Money to chose between a particular mark to be adopted, finalize it and then to create an identity amongst the consumers under the said mark. And when such marks are applied to claim the monopoly with the Trademarks Registry, it requires proper submissions to be made to claim the monopoly and although the complainant may get their money refunded but the precious time and energy behind creating it cannot be refunded by the Opposite party. Later, complainant had sent a legal notice to the previous application's cited mark holder Mr. mitten Kumar Gupta and had requested to cease and desist the use of the mark since the Complainant is the prior user of the mark Astrowala and/or Astrowala.com and thus, Mittan Gupta had also requested to the Trademarks registry, Delhi to withdraw his Trademark at earliest. Due to the negligent acts of the OP, the complainant has suffered loss and injury due to deprivation, harassment, mental agony and loss of professional practice and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to refund the charges paid by the complainant to the OP for said Trademark applications and further to pay Rs.15,00,000/- as compensation and Rs.25,000/- as costs for mental agony and Rs.30,000/- as litigation expenses.

2.                Notice of the complaint was given to the OP and accordingly, the OP appeared but failed to file written statement despite giving number of opportunities and one opportunity with cost and ultimately the OP was proceeded against exparte.

3.                In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-11.

4.                We bestowed our thoughtful consideration to the submissions made by learned counsel for the complainant and have also gone through the case file as well as written arguments submitted by counsel for the complainant very minutely.

5.                The OP is a company providing services relating to trademark registration in the name and style of ‘Vakil Search’. The complainant has approached the OP for trademark registration for his various brand names and for this he has sent email to the OP, which has been proved as Ex.C-1. These are emails consisting of pages 1 to 38. These emails and attachments show that there was a conversation between the OP and the complainant for the registration of the four trademarks which are as follows:-

6.                The grudge of the complainant is that he gave the OP all the details regarding the registration of the logos and specifically told him to get the coloured logos registered and the copies of the same have been proved on record by the complainant as attachment with Ex.C-1. He has proved on record the questionnaire Ex.C-3 consisting of pages 45 to 52, in which he has specifically mentioned against column number No.1 about the description of the trademark and of goods and services as Astrology, Numerology, Vastu Consultation & Teachings Gemstones also. Ex.C-4 is the letter, which is examination report, vide which the application of the complainant for the registration of the trademark was opened to objection under Section 11 of the Trademark Act as the similar trademark was already on the record. The complainant has proved on record his applications for registration of trademark Ex.C-6, which is consisting of pages 59 to 67. Perusal of these forms, which are related to different logos and trademarks, show that the fee for the registration of all the logos and trademarks has been paid and in the column of Image Description, the image contains font style and black & white colour has been mentioned, whereas the emails Ex.C-1 and attachment show that the coloured logos were sent to the OP for the registration of the same. Even the OP has admitted that he had applied for the black & white colour logos as the same is more frequently used in the market. With regard to the objections of the complainant, the OP has sent the email Ex.C-9 vide which they have admitted to restrict the good description, if the complainant wants and similarly he has also admitted that he will make the changes in the colour of the logo, if the complainant wishes so. In Ex.C-8 the complainant has expressed his annoyance with the OP stating that he has intentionally filed wrong application. The complainant has given answers in the question and provided information of his trademark Astrowala.com (Logo) in his name and Numerology Expert (Logo) in the name of Ms. Anu Bhutani Chauhan, but the OP has filed the mark under ‘proposed to be used’ and whereas the cited mark Astrowala is using after his name. He has expressed his grudge that the OP has wrongly mentioned the brand name as Astrowala, whereas the Astrowala.com and Astrowala are completely different. He has also clearly mentioned that the OP has wrongly mentioned his services as legal services i.e. security services for the physical protection of tangible property and individuals, personal and social services rendered by others to meet the needs of individuals. As per Ex.C-3 there is no reference of the above said services rather there is reference of Astrology, Numerology, Vastu Consultation & Teachings Gemstones.

7.                The contention of the OP is that the trademark application alongwith user and response of examination report was confirmed and draft was approved by the complainant, but despite this the OP has not considered that in the questionnaire the detail has been mentioned by the complainant about the logos and the trademarks, which were to be registered. The objection was raised that the logos and trademark was already applied by Mr. Nitin K. Gupta. Perusal of Ex.C-4 & Ex.C-5, consisting of pages 1-4 show that Mr. Nitin K. Gupta applied for the trademark on 27.07.2020 for the same services/goods. Perusal of Ex.C-3 shows that against the column no.14, user date of brand mark, it has been specifically mentioned that the trademark brand is being used for the last two years, whereas the OP has mentioned in the application for registration of trademark against column Statement as to use of mark as proposed to be used. He has nowhere mentioned that the trademark was already in use and the same was being used by the complainant for the last two years. So, the application has been filled in completely wrong by the OP, who was dealing with the registration of trademark etc. The complainant has again sent the emails to refund the amount of the fee given by the complainant to the OP and he has proved Ex.C-10, the reply to the ‘Vakil Search’ on their last email expressing his non-satisfaction with the services of the OP. It has been specifically mentioned in the reply by the complainant that the OP has not only committed the mistake in one application, but there are series of the applications, in which the same mistake has been repeated without his consent. Though later on Mr. Nitin K. Gupta had withdrawn his application for trademark which has been proved by the complainant as EX.C-11, consisting of pages 1-4, but this does not exonerate the OP from the mistakes committed by him.

8.                From the above said discussion and the documents, it is proved that the OP was authorized to apply for registration of trademark with specific specimens of the logos and trademarks to be registered and with reply to the questionnaire, but the OP has changed the subject and services in column and the detail in columns against the application without the consent of the complainant. So, there is deficiency in service as well as unfair trade practice on the part of the OP. Thus, the complainant is entitled for the relief.

9.                In view of the above detailed discussion, the complaint of the complainant is partly allowed and the OP is directed to refund Rs.25,080/- the charges paid by the complainant to the OP. Further, the OP is directed to pay a compensation of Rs.15,000/- for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

10.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated         Jaswant Singh Dhillon      Jyotsna      Dr. Harveen Bhardwaj     

05.12.2022         Member                           Member             President